Supreme Court Set to Overturn Obamacare?

Trying to predict Supreme Court decisions from the questions justices ask during oral arguments can be a bit like reading tea leaves. But after three days of grueling questioning by U.S. Supreme Court Justices, this much can be said: the Supreme Court’s conservative block seems to have deep suspicions about the constitutionality of the massive health care overhaul, including swing vote Justice Anthony Kennedy.

The Supreme Court this week analyzed four issues with respect to Obamacare. Whether the Anti-Injunction Act would bar a challenge to the individual mandate until it takes effect in 2014; whether the individual mandate is unconstitutional; whether all of Obamacare should be thrown out if the individual mandate is found unconstitutional (severability); and whether Obamacare’s dramatic expansion of Medicaid is an unconstitutional coercion of the states.

This so-called “individual mandate” was subjected to intense scrutiny by the Supreme Court during oral arguments.”Some of the justices wondered whether the government could compel people to exercise, eat broccoli or buy certain cars if the mandate is upheld,” Fox News reported.Justice Kennedy said during questioning that the mandate “is different from what we have in previous cases – and that changes the relationship of the federal government to the individual in a very fundamental way.”

Of course, Judicial Watch made similar arguments in its amicus curiae brief filed with the Supreme Court on February 13, 2012, specifically using the example of purchasing an automobile to show the ludicrous consequences of allowing this individual mandate to stand:

…the health care market has features that make it unique, so could any market have features that make it unique. Suppose Congress decided to require that every American purchase a Chevy Volt. Such a mandate might seem extreme and politically infeasible, but what if Congress made the argument that without the mandated purchase of the Chevy Volt, given all the regulations applicable to American car manufacturers, without a mandate the American automotive industry would fall apart completely?Sooner or later, every American ends up needing transportation or at least benefits from the transportation of others, so can Americans as a whole really said to be not engaging in commerce when they choose not to buy a car? Although the mandated purchase of a Chevy Volt may sound like an extreme imposition on the liberty of American citizens, on what grounds could the Court protect that liberty if such a purchase were designed as an integral part of a comprehensive scheme of economic regulation, perhaps a desire to create a viable national economy in electric cars within a nation that finds electric cars undesirable.

Though proponents of Obamacare might be able to salvage unimportant parts of Obamacare, a majority of the justices seemed willing to gut it, if not throw it out entirely.

According to The Los Angeles Times in its article entitled, “Judges Poised to Strike Down Entire Healthcare Law:”

The Supreme Court’s conservative justices said…they are prepared to strike down President Obama’s healthcare law entirely.Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the law’s controversial individual mandate to purchase health insurance means the whole statute should fall with it.The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.

Justice Scalia countered by jokingly invoking the 8th Amendment against cruel and unusual punishment at the prospect of being forced to read the 2,700-page legislation and decide the merits of the law stipulation by stipulation:

…what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to…give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

Can you take out the heart of the Act and leave everything else in place?

(As one commentator points out, Justice Scalia’s comments show that the justices evidently have not yet bothered to read the historic law that they’re now considering!)

In reading the tea leaves of the arguments, I tend to think that the mandate will be struck down and that there’s a good chance that Obamacare will die as a result. Even if there isn’t a majority of the court willing to throw it out in its entirety, related pieces of Obamacare that would go out with the mandate would eviscerate Obamacare. I have no idea how the Medicaid dispute will work out. The Court may not even have to get to that issue if they throw out the mandate, as the Medicaid expansion could necessarily go down with it.

Obamacare supporters are apoplectic at how badly the oral arguments went for their side. What is their plan if Obamacare goes down? Attack the court. (They’re already attacking the Obama Solicitor General who had the difficult job of defending the indefensible before to the Court.) The Washington Post reports the news that the Obama front group, “Know Your Care,” will resort to outrageous personal attacks rather than substantive policy and constitutional arguments:

One liberal group formed to build public support for the law, Protect Your Care, plans to throw out its playbook if the justices rule against the administration. Instead of promoting the popular provisions in the law, the group would devote its time in the fall to going negative on the court itself – painting the conservative justices as partisan ideologues who robbed Americans of needed benefits. The messages would be aimed at seniors who might lose prescription drug benefits and young people who might lose access to their parents’ health insurance plans.

Of course, this week’s embarrassing spectacle of the liberal justices and government lawyers haplessly trying to defend Obamacare with appeals to emotion rather than to the Constitution will be ignored by all the president’s men. Also ignored is the cloud over the High Court resulting from the still-unexplained participation of Obama appointee Justice Elena Kagan in the consideration of a law that she may have worked on (and supported) when she was in the Obama Department of Justice.

You can listen to the Obamacare arguments or read their transcripts here and draw your own conclusions. I think you’ll see that the opponents of Obamacare seemed actually to wrestle with some of the difficult legal questions.

The Supreme Court is expected to rule by the end of June. In the meantime, your Judicial Watch will work to expose and will fight the attempts of President Obama and his “gangster government” allies to undermine the rule of law by unfairly attacking the integrity of the Supreme Court.

If you want to see the ugly underbelly of American politics, take a look at the documents we released this week detailing private events involving Democratic governors and Big Pharma.

The events were held during the February 2012 winter meeting of the National Governors Association (NGA) and were widely attended by unions, drug companies, and other health concerns.

As you’ll see, among the most active “pay-to-play” participants in these events was Pfizer, Inc., the “world’s largest research based pharmaceutical company.” Pfizer sponsored an evening reception and dinner for members of the Democratic Governors Association (DGA) chairman’s board, which include donors of $100,000 or more to the organization. The reception provided attendees with personal access to the Democratic governors.

A second, private reception held the following night included donors of $250,000 or more to the DGA, as well as members of the chairman’s board. Both events were closed to the press.

We got hold of these records pursuant to a March 7, 2012, request submitted to the office of Vermont Governor Peter Shumlin under the Vermont Public Records Law. Here’s what they show:

Pharmaceutical companies attending both of the privately held events for major donors to the DGA included Allergan, AstraZeneca, GlaxoSmithKline, Novartis, and Pfizer. Amgen, Lilly, and Merck attended only the first event. Bristol-Myers Squibb attended the second reception open to donors of $250,000 and above.

Donors attending both receptions from the health care industry included Aflac, Amerigroup, Norvo Nordisk, and the United Health Group. American Health Care Association and eHealth attended only the first event. Blue Cross Blue Shield attended the second reception.

Union organizations and trade associations attending both receptions included International Council of Shopping Centers, International Union of Painters and Allied Trades, National Education Association, and the United Food and Commercial Workers.

Also attending the Pfizer-sponsored dinner and both receptions was former governor of South Carolina, James Hodges, representing MAXIMUS, the for-profit company that provides program management and consulting to local and state governments on health and human services. MAXIMUS has been embroiled over the years in a number of scandals, including a lawsuit brought against it by the United States Government for falsifying Medicare claims adding up to some $30.5 million. MAXIMUS settled the lawsuit.

The documents also show that Steve Janson, Pfizer’s VP of public affairs, requested to sit next to Vermont Governor Peter Shumlin at the Chairman’s Dinner. The request seemingly was granted.

The stated purpose of the NGA meetings beginning on February 25 and ending with the White House dinner with President and Mrs. Obama on February 27 was to discuss job creation and expanding economic growth. However, the DGA meetings inserted before and during the weekend provided pharmaceutical and health care companies direct access to Democratic governors.

And this has become a growing problem on both sides of the aisle.

As reported by The New York Times, the DGA and Republican Governors Association (RGA) have become major targets of influence for lobbyists: “Operating outside the laws that block federal candidates and party committees from taking money from unions or businesses, the Democratic governors’ group – and its Republican counterpart – are case studies in corporate political fund-raising.”

This is a “pay-to-play” system where big companies and unions pump gobs of cash into lavish events in order to persuade politicians to serve their interests.

It’s no wonder Big Pharma did not want the press around while they were busy wining and dining Democratic Governors! How would it look to the American people to see drug companies, unions and health care interests effectively greasing the palms of the nation’s Democratic governors? This is especially ironic given Obama’s anti-“special interest”/big business rhetoric.

Even the leftist Times notes: “At the moment, though, the Democrats’ efforts are more noteworthy. Their governors have overcome the national party’s antibusiness image to pull closer to the Republicans in corporate fund-raising. And the governors’ association’s eager courtship of corporate money is at odds with warnings from Congressional Democrats in the aftermath of the Supreme Court decision that such spending is a threat to democracy.”

Governor Shumlin’s response to our disclosures was incredible. His spokesman told one Vermont paper that the Pfizer rep is a friend of the governor’s and that, “No governor in the country has a stronger or more consistent record of standing up to the pharmaceutical industry than Gov. Shumlin,” This statement doesn’t explain much, but does highlight Governor Shumlin’s cynical hypocrisy. As conservatives, we don’t think government officials should be “standing up to” (meaning attacking) private corporations, as most leftists support. We’re just concerned with politicians misusing their offices to raise money to stay in power.

Thanks to Judicial Watch, this scandal is no longer a well-kept secret. But we’re not finished. A separate Judicial Watch investigation into the RGA meetings is now underway.

In the meantime, Gov. Shumlin is supposed to take over as head of the DGA. So we will have our watchdog work cut out for us.

Closing with a bit of rough news, on Tuesday, Judicial Watch unfortunately lost its appeal on behalf of Joe Wurzelbacher, known to many as “Joe the Plumber.”

It has been a while since I’ve covered this case, so let’s review the facts before getting to the court’s decision.

You may recall that Mr. Wurzelbacher had the “gall” in 2008 to question then-candidate for the presidency Barack Obama during a campaign stop about the impact of his tax policies on small businesses. (Mr. Wurzelbacher was a plumber and a small businessman.) Obama responded by saying that he thought it was a good idea to “spread the wealth around,” a statement that sent shock waves through the presidential campaign. (You can watch the exchange here.)

“Joe the Plumber’s” Q&A with Obama quickly “went viral” and became a public sensation, but it’s what happened behind closed doors that led to Judicial Watch’s legal action on Mr. Wurzelbacher’s behalf.

According to an investigation by the Ohio Inspector General on October 16, 2008, just four days after Mr. Wurzelbacher questioned Obama, the three highest ranking employees of the Ohio Department of Job and Family Services (Helen Jones-Kelley, Fred Williams and Doug Thompson) held a meeting and specifically discussed “Joe the Plumber.” Following the meeting the three Ohio officials authorized and instructed agency personnel to search confidential office databases to retrieve information about Mr. Wurzelbacher.

Given that all three are believed to have been Obama campaign supporters, the intent seems obvious: They wanted to collect dirt on Mr. Wurzelbacher that could be used to undermine his credibility. (“Joe the Plumber” had become something of a campaign celebrity following his revealing exchange with Obama.)

With respect to the dirt-digging, the Inspector General (IG) confirmed the obvious: There was “no legitimate agency function or purpose for checking on [Mr. Wurzelbacher’s] name through the [confidential databases] or for authorizing these searches,” which the IG labeled a “wrongful act.” The IG also determined that one of the defendants, Helen Jones-Kelley, misused state resources to conduct political activities on behalf of Obama.

In response to what was clearly a violation of Mr. Wurzelbacher’s constitutional rights, Judicial Watch stepped forward and filed a lawsuit on his behalf in conjunction with Ohio attorney David R. Langdon. The lower court dismissed the lawsuit, citing a “failure to allege a sufficient adverse reaction” by Mr. Wurzelbacher. JW filed an appeal but unfortunately the appellate court upheld the lower court’s decision. We think the courts are completely wrong, but here’s a squib from the ruling handed down this week:

Wurzelbacher does allege that his knowledge of the improper database searches caused him to suffer “emotional distress, harassment, personal humiliation, and embarrassment.” However, these allegations are too generalized to withstand judgment on the pleadings.

Overall, the court said the repercussions of the smear campaign attempted against Mr. Wurzelbacher were “inconsequential.”

That’s right. The repercussions of government officials retaliating against you for exercising your First Amendment rights were labeled “inconsequential” by the court. The implications of this decision are frightening. Essentially, this ruling means that government officials can feel free to rifle through the private files of citizens without fear of accountability.

Let me put it this way. Here we are again in an election season. Can any American citizen feel comfortable exercising their First Amendment rights by questioning candidates on the issues when they may be subject to secret searches by politicized bureaucrats in return?

It is unconscionable that high-ranking state officials pried into confidential government files to punish Joe Wurzelbacher for asking a simple question. Justice was not served with this decision. I’m sure the Obama operation is sighing in relief now that its campaign supporters escaped full accountability this week. Though the latest court decision has a silver lining: news reports citing our critique of the violations of Joe Wurzelbacher’s rights appeared all over the country. In my view, educating Americans about government corruption is an essential step to stopping it.